Should You Take Your Workers' Compensation Case To Trial?How do you know when it makes sense to take your workers' compensation case to trial? Attorney Steve Lombardi explains how to know what is in your best interest.

We are still examining the new workers’ compensation laws from the 2017 legislative session. Here is another whopper from the pro-business agenda, the fake job offer.

I apologize for the length of this blog. I know it's too long, but I had to write what needs to be said.

This one is a head-fake for the record books. Start off by understanding these changes are designed to allow employers to create an impression the injured worker is being taken care of. When in fact the exact opposite will happen. It will happen right after they close your insurance file.

HERE IS HOW EMPLOYERS TEND TO USE WORKERS' COMPENSATION

You get hurt. The doctor takes you off of work. During this time, you work on getting better. After you are better, but not completely healed, the doctor will release you back to work. You return to work, try to do the job, but the lifting is more than you bare, and so you go back to the doctor and he wants to take you back off of work. But the employer says, hold on we can create a job, a light-duty job, a fake job. Not back to your old job, but to some other job with less physical stress. [A light-duty job.]

This is where the current employer makes up the fake job description, a job that will not last.

THE LIGHT DUTY JOB PAYS LESS AND REALISTICALLY IS ONLY TEMPORARY

All light duty jobs will pay less. Some may even be with a different employer arranged by the insurance companies high-priced spies traditionaly referred to as nurse case managers. These jobs really pay less because, let’s face it, you are new to the job and new to a different employer.

If you refuse to take the fake job all you get from workers’ compensation benefits will be functional impairment. That's like giving a kid wrapping paper and telling him to wrap his own Christmas gifts, when he can afford to buy them.

FUNCTIONAL IMPAIRMENT VS INDUSTRIAL DISABILITY

There are two general categories of injuries, functional impairment and industrial disability.

Functional impairment is how well a joint works. How well the joints function is but one component of figuring out if the injury has caused you to lose earning capacity. In industrial disability, we analyze how the injury affects someone like you by taking into consideration your age, education, work experience, transferable work skills, need to travel, physical strength, stamina, ability to work an eight-hour day and the functional impairment.

Functional impairment is a simple measurement. Five, ten or fifteen degrees loss to a wrist or an elbow, a hip or a shoulder joint. A five percent loss of function to the shoulder tells us nothing about the fact 9 out of 10 jobs you have done in the past, you can no longer do.

Functional impairment is a fiction someone gets out of a book. An arbitrary number used to pay you a lot less than industrial disability. Functional impairment doesn’t care that you now work at McDonalds as compared to previously being an iron worker, a carpenter, a concert pianist, a nurse, an LPN, an accountant, a doctor or the CEO of a major corporation. Functional impairment is heartless. Soulless. A mindlessly arbitrary number.

After that you're on your own.

WHAT IS THE RUB?

After your injury, while you were off work, bills piled up, the kids still needed shoes and other expenses you could not afford reared their ugly head.

And now you're back to work but making less! And the functional impairment money soon ran out...it's gone and you find yourself making a buck-two-ninety-eight pushing fries across the counter.

You needed these industrial disability compensation, permanent partial disability benefits, to catch up and then to figure out how to get retrained to make as close to what you were earning before the injury. Iowa's policy was (but is no longer) to help an injured work force rehabilitate.

IT IS THE FAKE JOB THAT ALLOWS THEM TO IGNORE YOUR INDUSTRIAL DISABILITY

When they offered the fake job, you have no choice but to take it knowing as soon as you cash the last check from workers’ compensation. you're done.

They will fire you for a reason having nothing to do with your injury.

And that is why lawyers are really needed at this stage. Because what we do is develop the evidence to prove this is a fake job and then to prove industrial disability.

DO EMPLOYERS EVER OFFER ACCOMADATIONS?

Some do, most don’t. After the injury, you are a broken washing machine, which has been fixed and carries no warranty. Why would an employer take you back when he or she can hire some young kid who has never had a back injury? They won’t.

HERE IS HOW THE 2017 LEGISLATURE RIGGED THE GAME

And there is where the game really got rigged. Under the old law when you went back to work, the Commission could evaluate how solid the job is for you. The commission would look at the job for what it is, a fake job. And if you have industrial disability then you got paid for the loss of earning capacity. After all a broken washing machine that has been fixed isn’t likely to last.

Under the new law as soon as the employer offers you a job you have to take it or else you are eligible to receive an amount worth about one-tenth of the compensation that you received under the old law.

It is a trap, because the job they will offer you is really a fake job. You are damned if you do and damned if you don’t. Take it and you get paid less. Refuse it and you get paid less, if you cannot prove it was a fake job created to disguise the employer’s true intentions.

HERE IS WHAT YOU NEED TO KNOW AND DO

With this change, it is even more important that you have a lawyer on your side. Because … understand this… just because they are friendly to you, they are not your friend.

They intend to take you back on a temporary basis and after the case is closed fire you.

CONCLUSION

As I told you earlier, this one is a head-fake for the record books. This change is designed to allow employers to create an impression, that the injured worker is being taken care of by being given a good job. In fact, the exact opposite will happen. The fake job is intended to provide the industrial commissioner with cover to write a decision that screws the injured worker, while reducing the amount the injured workers is paid and then closing his file.

There will be no credible job. The fake job is intended to keep you on the payroll long enough to get your workers’ compensation file closed, pay you a reduced benefit, keep lawyers from helping you and then using a hostile work environment to make you quit.

There is no other purpose for offering a fake job and not allowing a serious legal evaluation of your industrial disability.

I conclude, at least in terms of needing a lawyer, you need one just as soon as you get hurt. In Iowa workers’ compensation, you need a lawyer from day-one because you never know when they will offer you the fake job.

Did this article resonate with you? Are you being tempted by "the fake job"? Don't fall for it! Contact me online or call me directly at 515-222-1110.